A Law Marcos Should Fear

March 19, 1986|By Michael J. Bazyler, professor of international law at Whittier College School of Law, Los Angeles, and Scott W. Wellman, a Newport Beach, Calif., international business attorney and adjunct professor of law at Whittier.

Now that former Philippine President Ferdinand Marcos is on United States soil, will he be allowed to retire peacefully or can he be made accountable for the wrongs he committed during his 20-year regime? The question is important; it involves not only Marcos but all other former rulers seeking United States asylum. What laws should Marcos and other former dictators living in American exile fear when they come to the United States?

What Marcos should fear most is a suit by Philippine nationals for human rights violations committed during his regime. Such suits have a good likelihood of success because of a little-used federal law known as the Alien Torts Claims Statute. This law allows all Filipinos tortured by the Marcos regime to come to our shores to sue Marcos for their torture.

The Alien Tort Claims Statute is an obscure law promulgated by the 1st United States Congress in 1789; it gives U.S. federal courts original jurisdiction over suits filed by aliens against defendants present in the United States for wrongful acts that are considered violations of the ``law of nations`` (the archaic term for ``international law``). The statute originally was designed to provide private relief to alien victims of piracy committed on the high seas, which at the time was a prevalent but universally condemned practice.

The statute, dormant for almost 200 years, was resurrected in 1980 by a federal appellate court in New York in the trail-blazing decision of Filartiga vs. Pena. That case involved a suit by Paraguayans against another Paraguayan for torture committed in Paraguay. The plaintiffs, relatives of the deceased torture victim, came temporarily to the United States to sue the Paraguayan government official responsible for the torture, who had taken up residence in this country. The federal appellate court held that U.S. courts have jurisdiction over such a suit under the Alien Tort Claims Statute.

The court found that all elements of the statute had been met: Plaintiffs were aliens, the defendant was present in the U.S., the plaintiffs were suing for a tort (torture) and torture is considered a violation of the law of nations.

The innovative portion of Filartiga is the finding of this last element in the case. For the first time in American judicial history, an American court held that torture is a clear and unequivocal violation of international law. According to the court, the modern torturer is like the pirate of yesteryear, hostis humanigeneris (``an outlaw of all mankind``). Thus, even though all parties in Filartiga were aliens and all operative acts occurred in Paraguay, the plaintiffs were able to obtain a $10.6 million judgment against the torturer.

Filartiga hit the international human rights law field like a bombshell. The case stands for the proposition that the United States no longer can be considered a retirement home for former dictators. Those who have committed or participated in committing torture abroad will not find shelter in this country.

It is clear that the Alien Tort Claims Statute would be applicable to former President Marcos. Reports from the Philippines indicate that torture and ``disappearances`` during the Marcos regime may have equaled in severity those occurring in Argentina during its martial law rule.

If this proves to be true, the Philippine victims of the torture then have a right to come to this country to sue Marcos for his complicity in the torture. Judgments against Marcos for $10 million each, like those in the Filartiga case, could number in the hundreds of thousands. That`s why Marcos, if he decides to stay in the United States, has good reason to fear the Alien Tort Claims Statute.